In less than a decade, an unprecedented movement has emerged to submit
international politics to judicial procedures. It has spread with
extraordinary speed and has not been subjected to systematic debate, partly
because of the intimidating passion of its advocates. To be sure, human
rights violations, war crimes, genocide, and torture have so disgraced the
modern age and in such a variety of places that the effort to interpose
legal norms to prevent or punish such outrages does credit to its
advocates. The danger lies in pushing the effort to extremes that risk
substituting the tyranny of judges for that of governments; historically,
the dictatorship of the virtuous has often led to inquisitions and even
witch-hunts.

The doctrine of universal jurisdiction asserts that some crimes are so
heinous that their perpetrators should not escape justice by invoking
doctrines of sovereign immunity or the sacrosanct nature of national
frontiers. Two specific approaches to achieve this goal have emerged
recently. The first seeks to apply the procedures of domestic criminal
justice to violations of universal standards, some of which are embodied in
United Nations conventions, by authorizing national prosecutors to bring
offenders into their jurisdictions through extradition from third
countries. The second approach is the International Criminal Court (ICC),
the founding treaty for which was created by a conference in Rome in July
1998 and signed by 95 states, including most European countries. It has
already been ratified by 30 nations and will go into effect when the total
reaches 60. On December 31, 2000, President Bill Clinton signed the ICC
treaty with only hours to spare before the cutoff date. But he indicated
that he would neither submit it for Senate approval nor recommend that his
successor do so while the treaty remains in its present form.

The very concept of universal jurisdiction is of recent vintage. The sixth
edition of Black's Law Dictionary, published in 1990, does not contain even
an entry for the term. The closest analogous concept listed is hostes
humani generis ("enemies of the human race"). Until recently, the latter
term has been applied to pirates, hijackers, and similar outlaws whose
crimes were typically committed outside the territory of any state. The
notion that heads of state and senior public officials should have the same
standing as outlaws before the bar of justice is quite new.

In the aftermath of the Holocaust and the many atrocities committed since,
major efforts have been made to find a judicial standard to deal with such
catastrophes: the Nuremberg trials of 1945 -- 46, the Universal Declaration
of Human Rights of 1948, the genocide convention of 1948, and the
antitorture convention of 1988. The Final Act of the Conference on Security
and Cooperation in Europe, signed in Helsinki in 1975 by President Gerald
Ford on behalf of the United States, obligated the 35 signatory nations to
observe certain stated human rights, subjecting violators to the pressures
by which foreign policy commitments are generally sustained. In the hands
of courageous groups in Eastern Europe, the Final Act became one of several
weapons by which communist rule was delegitimized and eventually
undermined. In the 1990s, international tribunals to punish crimes
committed in the former Yugoslavia and Rwanda, established ad hoc by the
U.N. Security Council, have sought to provide a system of accountability
for specific regions ravaged by arbitrary violence.

But none of these steps was conceived at the time as instituting a
"universal jurisdiction." It is unlikely that any of the signatories of
either the U.N. conventions or the Helsinki Final Act thought it possible
that national judges would use them as a basis for extradition requests
regarding alleged crimes committed outside their jurisdictions. The
drafters almost certainly believed that they were stating general
principles, not laws that would be enforced by national courts. For
example, Eleanor Roosevelt, one of the drafters of the Universal
Declaration of Human Rights, referred to it as a "common standard." As one
of the negotiators of the Final Act of the Helsinki conference, I can
affirm that the administration I represented considered it primarily a
diplomatic weapon to use to thwart the communists' attempts to pressure the
Soviet and captive peoples. Even with respect to binding undertakings such
as the genocide convention, it was never thought that they would subject
past and future leaders of one nation to prosecution by the national
magistrates of another state where the violations had not occurred. Nor,
until recently, was it argued that the various U.N. declarations subjected
past and future leaders to the possibility of prosecution by national
magistrates of third countries without either due process safeguards or
institutional restraints.

Yet this is in essence the precedent that was set by the 1998 British
detention of former Chilean President Augusto Pinochet as the result of an
extradition request by a Spanish judge seeking to try Pinochet for crimes
committed against Spaniards on Chilean soil. For advocates of universal
jurisdiction, that detention -- lasting more than 16 months -- was a
landmark establishing a just principle. But any universal system should
contain procedures not only to punish the wicked but also to constrain the
righteous. It must not allow legal principles to be used as weapons to
settle political scores. Questions such as these must therefore be
answered: What legal norms are being applied? What are the rules of
evidence? What safeguards exist for the defendant? And how will
prosecutions affect other fundamental foreign policy objectives and
interests?

A DANGEROUS PRECEDENT

IT IS decidedly unfashionable to express any degree of skepticism about the
way the Pinochet case was handled. For almost all the parties of the
European left, Augusto Pinochet is the incarnation of a right-wing assault
on democracy because he led a coup d'etat against an elected leader. At the
time, others, including the leaders of Chile's democratic parties, viewed
Salvador Allende as a radical Marxist ideologue bent on imposing a
Castro-style dictatorship with the aid of Cuban-trained militias and Cuban
weapons. This was why the leaders of Chile's democratic parties publicly
welcomed -- yes, welcomed -- Allende's overthrow. (They changed their
attitude only after the junta brutally maintained its autocratic rule far
longer than was warranted by the invocation of an emergency.)

Disapproval of the Allende regime does not exonerate those who perpetrated
systematic human rights abuses after it was overthrown. But neither should
the applicability of universal jurisdiction as a policy be determined by
one's view of the political history of Chile. The appropriate solution was
arrived at in August 2000 when the Chilean Supreme Court withdrew
Pinochet's senatorial immunity, making it possible to deal with the charges
against him in the courts of the country most competent to judge this
history and to relate its decisions to the stability and vitality of its
democratic institutions.

On November 25, 1998, the judiciary committee of the British House of Lords
(the United Kingdom's supreme court) concluded that "international law has
made it plain that certain types of conduct . . . are not acceptable
conduct on the part of anyone." But that principle did not oblige the lords
to endow a Spanish magistrate -- and presumably other magistrates elsewhere
in the world -- with the authority to enforce it in a country where the
accused had committed no crime, and then to cause the restraint of the
accused for 16 months in yet another country in which he was equally a
stranger. It could have held that Chile, or an international tribunal
specifically established for crimes committed in Chile on the model of the
courts set up for heinous crimes in the former Yugoslavia and Rwanda, was
the appropriate forum.

The unprecedented and sweeping interpretation of international law in Ex
parte Pinochet would arm any magistrate anywhere in the world with the
power to demand extradition, substituting the magistrate's own judgment for
the reconciliation procedures of even incontestably democratic societies
where alleged violations of human rights may have occurred. It would also
subject the accused to the criminal procedures of the magistrate's country,
with a legal system that many be unfamiliar to the defendant and that would
force the defendant to bring evidence and witnesses from long distances.
Such a system goes far beyond the explicit and limited mandates established
by the U.N. Security Council for the tribunals covering war crimes in the
former Yugoslavia and Rwanda as well as the one being negotiated for
Cambodia.

Perhaps the most important issue is the relationship of universal
jurisdiction to national reconciliation procedures set up by new democratic
governments to deal with their countries' questionable pasts. One would
have thought that a Spanish magistrate would have been sensitive to the
incongruity of a request by Spain, itself haunted by transgressions
committed during the Spanish Civil War and the regime of General Francisco
Franco, to try in Spanish courts alleged crimes against humanity committed
elsewhere.

The decision of post-Franco Spain to avoid wholesale criminal trials for
the human rights violations of the recent past was designed explicitly to
foster a process of national reconciliation that undoubtedly contributed
much to the present vigor of Spanish democracy. Why should Chile's attempt
at national reconciliation not have been given the same opportunity? Should
any outside group dissatisfied with the reconciliation procedures of, say,
South Africa be free to challenge them in their own national courts or
those of third countries?

It is an important principle that those who commit war crimes or
systematically violate human rights should be held accountable. But the
consolidation of law, domestic peace, and representative government in a
nation struggling to come to terms with a brutal past has a claim as well.
The instinct to punish must be related, as in every constitutional
democratic political structure, to a system of checks and balances that
includes other elements critical to the survival and expansion of
democracy.

Another grave issue is the use in such cases of extradition procedures
designed for ordinary criminals. If the Pinochet case becomes a precedent,
magistrates anywhere will be in a position to put forward an extradition
request without warning to the accused and regardless of the policies the
accused's country might already have in place for dealing with the charges.
The country from which extradition is requested then faces a seemingly
technical legal decision that, in fact, amounts to the exercise of
political discretion -- whether to entertain the claim or not.

Once extradition procedures are in train, they develop a momentum of their
own. The accused is not allowed to challenge the substantive merit of the
case and instead is confined to procedural issues: that there was, say,
some technical flaw in the extradition request, that the judicial system of
the requesting country is incapable of providing a fair hearing, or that
the crime for which the extradition is sought is not treated as a crime in
the country from which extradition has been requested -- thereby conceding
much of the merit of the charge. Meanwhile, while these claims are being
considered by the judicial system of the country from which extradition is
sought, the accused remains in some form of detention, possibly for years.
Such procedures provide an opportunity for political harassment long before
the accused is in a position to present any defense. It would be ironic if
a doctrine designed to transcend the political process turns into a means
to pursue political enemies rather than universal justice.

The Pinochet precedent, if literally applied, would permit the two sides in
the Arab-Israeli conflict, or those in any other passionate international
controversy, to project their battles into the various national courts by
pursuing adversaries with extradition requests. When discretion on what
crimes are subject to universal jurisdiction and whom to prosecute is left
to national prosecutors, the scope for arbitrariness is wide indeed. So
far, universal jurisdiction has involved the prosecution of one fashionably
reviled man of the right while scores of East European communist leaders --
not to speak of Caribbean, Middle Eastern, or African leaders who inflicted
their own full measures of torture and suffering -- have not had to face
similar prosecutions.

Some will argue that a double standard does not excuse violations of
international law and that it is better to bring one malefactor to justice
than to grant immunity to all. This is not an argument permitted in the
domestic jurisdictions of many democracies -- in Canada, for example, a
charge can be thrown out of court merely by showing that a prosecution has
been selective enough to amount to an abuse of process. In any case, a
universal standard of justice should not be based on the proposition that a
just end warrants unjust means, or that political fashion trumps fair
judicial procedures.

AN INDISCRIMINATE COURT

THE IDEOLOGICAL supporters of universal jurisdiction also provide much of
the intellectual compass for the emerging International Criminal Court.
Their goal is to criminalize certain types of military and political
actions and thereby bring about a more humane conduct of international
relations. To the extent that the ICC replaces the claim of national judges
to universal jurisdiction, it greatly improves the state of international
law. And, in time, it may be possible to negotiate modifications of the
present statute to make the ICC more compatible with U.S. constitutional
practice. But in its present form of assigning the ultimate dilemmas of
international politics to unelected jurists -- and to an international
judiciary at that -- it represents such a fundamental change in U.S.
constitutional practice that a full national debate and the full
participation of Congress are imperative. Such a momentous revolution
should not come about by tacit acquiescence in the decision of the House of
Lords or by dealing with the ICC issue through a strategy of improving
specific clauses rather than as a fundamental issue of principle.

The doctrine of universal jurisdiction is based on the proposition that the
individuals or cases subject to it have been clearly identified. In some
instances, especially those based on Nuremberg precedents, the definition
of who can be prosecuted in an international court and in what
circumstances is self-evident. But many issues are much more vague and
depend on an understanding of the historical and political context. It is
this fuzziness that risks arbitrariness on the part of prosecutors and
judges years after the event and that became apparent with respect to
existing tribunals.

For example, can any leader of the United States or of another country be
hauled before international tribunals established for other purposes? This
is precisely what Amnesty International implied when, in the summer of
1999, it supported a "complaint" by a group of European and Canadian law
professors to Louise Arbour, then the prosecutor of the International
Criminal Tribunal for the Former Yugoslavia (ICTY). The complaint alleged
that crimes against humanity had been committed during the NATO air
campaign in Kosovo. Arbour ordered an internal staff review, thereby
implying that she did have jurisdiction if such violations could, in fact,
be demonstrated. Her successor, Carla Del Ponte, in the end declined to
indict any NATO official because of a general inability "to pinpoint
individual responsibilities," thereby implying anew that the court had
jurisdiction over NATO and American leaders in the Balkans and would have
issued an indictment had it been able to identify the particular leaders
allegedly involved.

Most Americans would be amazed to learn that the ICTY, created at U.S.
behest in 1993 to deal with Balkan war criminals, had asserted a right to
investigate U.S. political and military leaders for allegedly criminal
conduct -- and for the indefinite future, since no statute of limitations
applies. Though the ICTY prosecutor chose not to pursue the charge -- on
the ambiguous ground of an inability to collect evidence -- some national
prosecutor may wish later to take up the matter as a valid subject for
universal jurisdiction.

The pressures to achieve the widest scope for the doctrine of universal
jurisdiction were demonstrated as well by a suit before the European Court
of Human Rights in June 2000 by families of Argentine sailors who died in
the sinking of the Argentine cruiser General Belgano during the Falklands
War. The concept of universal jurisdiction has moved from judging alleged
political crimes against humanity to second-guessing, 18 years after the
event, military operations in which neither civilians nor civilian targets
were involved.

Distrusting national governments, many of the advocates of universal
jurisdiction seek to place politicians under the supervision of magistrates
and the judicial system. But prosecutorial discretion without
accountability is precisely one of the flaws of the International Criminal
Court. Definitions of the relevant crimes are vague and highly susceptible
to politicized application. Defendants will not enjoy due process as
understood in the United States. Any signatory state has the right to
trigger an investigation. As the U.S. experience with the special
prosecutors investigating the executive branch shows, such a procedure is
likely to develop its own momentum without time limits and can turn into an
instrument of political warfare. And the extraordinary attempt of the ICC
to assert jurisdiction over Americans even in the absence of U.S. accession
to the treaty has already triggered legislation in Congress to resist it.

The independent prosecutor of the ICC has the power to issue indictments,
subject to review only by a panel of three judges. According to the Rome
statute, the Security Council has the right to quash any indictment. But
since revoking an indictment is subject to the veto of any permanent
Security Council member, and since the prosecutor is unlikely to issue an
indictment without the backing of at least one permanent member of the
Security Council, he or she has virtually unlimited discretion in practice.
Another provision permits the country whose citizen is accused to take over
the investigation and trial. But the ICC retains the ultimate authority on
whether that function has been adequately exercised and, if it finds it has
not, the ICC can reassert jurisdiction. While these procedures are taking
place, which may take years, the accused will be under some restraint and
certainly under grave public shadow.

The advocates of universal jurisdiction argue that the state is the basic
cause of war and cannot be trusted to deliver justice. If law replaced
politics, peace and justice would prevail. But even a cursory examination
of history shows that there is no evidence to support such a theory. The
role of the statesman is to choose the best option when seeking to advance
peace and justice, realizing that there is frequently a tension between the
two and that any reconciliation is likely to be partial. The choice,
however, is not simply between universal and national jurisdictions.

MODEST PROPOSALS

THE PRECEDENTS SET by international tribunals established to deal with
situations where the enormity of the crime is evident and the local
judicial system is clearly incapable of administering justice, as in the
former Yugoslavia and Rwanda, have shown that it is possible to punish
without removing from the process all political judgment and experience. In
time, it may be possible to renegotiate the ICC statute to avoid its
shortcomings and dangers. Until then, the United States should go no
further toward a more formal system than one containing the following three
provisions. First, the U.N. Security Council would create a Human Rights
Commission or a special subcommittee to report whenever systematic human
rights violations seem to warrant judicial action. Second, when the
government under which the alleged crime occurred is not authentically
representative, or where the domestic judicial system is incapable of
sitting in judgment on the crime, the Security Council would set up an ad
hoc international tribunal on the model of those of the former Yugoslavia
or Rwanda. And third, the procedures for these international tribunals as
well as the scope of the prosecution should be precisely defined by the
Security Council, and the accused should be entitled to the due process
safeguards accorded in common jurisdictions.

In this manner, internationally agreed procedures to deal with war crimes,
genocide, or other crimes against humanity could become institutionalized.
Furthermore, the one-sidedness of the current pursuit of universal
jurisdiction would be avoided. This pursuit could threaten the very purpose
for which the concept has been developed. In the end, an excessive reliance
on universal jurisdiction may undermine the political will to sustain the
humane norms of international behavior so necessary to temper the violent
times in which we live.

Henry A. Kissinger, Chairman of Kissinger Associates, Inc., is a former Secretary of State and National Security Adviser. This essay is adapted from his latest book, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century.

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